Since the Developer had delayed the project beyond the time limit as per the Joint Development Agreement ; Landowner Mr.B.R.Shetty has gone ahead and revoked the General Power Of Attorney given to M/s Nitesh Estates Limited. Landowner has given PUBLIC NOTICE in the Newspaper – VIJAY KARNATAKA dated March 20th 2018 (Page 7) as below:-

Since the Developer had delayed the project beyond the time limit as per the Joint Development Agreement ; Landowner Mr.B.R.Shetty has gone ahead and revoked the General Power Of Attorney given to M/s Nitesh Estates Limited. Landowner has given Advertisement in the Newspaper – Times of India dated March 20th 2018 (Page 9) as below:-

NCPBA thanks all the members who have joined together to fight for their flats which are not completed as yet by Nitesh Estates Limited. As per the court order to publish the public notice , we have published the same notice in “Vijay Karnataka” as below –Our Submission of the consumer case was challenged on the grounds whether it qualifies to be entered under Class Action Law Suit under section 12(1) C of consumer protection act 1986 or not by Nitesh Estates Limited. The court has ordered in favor of the Nitesh Caesars Palace buyers and has also issued the order to issue a public notice in leading newspapers. We invite all the buyers in the Nitesh Caesars Palace project to be part of consumer case to ask for their rights and early completion of their flats.

If people who are left out of this 250 list , still wish to join the consumer case can contact us at ncpbassociation@gmail.com or to Mr.Vishwanath @ 9845008469 or to Mr.Rajesh – 9845274728.

NCPBA doesn’t wish to leave out any buyers stranded alone , fighting alone for their own flats with Nitesh Estates Limited.

If any questions or any difficulty , please feel free to call or mail us.
As per the court order , we would like to invite all other buyers from the project “NITESH CAESAR’S PALACE” to be part of the consumer case and ask for their rights.

All home buyers can join a existing complaint filed

Judgement of the case will be binding on all the buyers

Only one complaint to be filed against the Builder /Developer Under Section 12.1 C as a group of buyers

All other complainants can join as a group after the Public Notice is served

Judgement to be based on Agreement Value and not Market Value

The NCDRC have clarified its position on Section 12 (1) (c) of Consumer Protection Act 1986. NCDRC has allowed complaints by a group of buyers under Section 12 (1) (c).

If we have to go by layman’s interpretation, all builder related cases can by filed in NCDRC, thus skipping the lower forums.

There has been a lot of confusion and ambiguity in the interpretation of complaints filed under Section 12 (1) (c). Different benches of NCDRC had a different view on this section of the Act.

This led to the matter being referred to a three-member bench of NCDRC. These three question/issues arose in front of the commission: Whether complaint under Section 12 (1) (c) filed on behalf of or for the benefit of only some the numerous buyers are maintainable or it must be filed on behalf of all consumers having a common interest.

Where complaint under this section is maintainable where the value of goods, service, compensation in respect of none of the allottees exceeds rupees one crore.

Where complaint under this section is maintainable where the value of goods, service, compensation in respect to individual allottee exceeds rupees one crore.

Where complaint under this section is maintainable where the cost of the apartment, the area of the apartments is different and the apartments were booked on different dates.

Court’s observation

Here are the key observations in full bench judgement concerning the interpretation of Section 12 (1) (c) of the Consumer Protection Act. We have tried to explain court’s order in laymen’s terms.

If a complaint is against a builder under Section 12 (1) (c), i.e by an unregistered group of persons, it can be filed only on behalf of or for the benefit of all buyers who have the same interest and grievance against the builder. It cannot be filed seeking relief for the benefit of only some of the buyers.

A complaint under Section 12 (1) (c) is maintainable before the NCDRC where the aggregate value of the all the apartments combined and the total compensation claimed in respect of all the buyers exceeds Rs. 1 crore. The value of each individual apartment is wholly irrelevant in such a complaint.

So long as the grievance of the buyers is common and an identical relief is claimed for all of them, the cost, the size, area of the flat/plot and the date of booking/allotment/purchase would be wholly immaterial. The relief claimed will be the same if for example, in a case of delay in possession, refund, or possession or in the alternate refund, with or without compensation, is claimed for all the buyers. Different reliefs for one or more consumers on whose behalf or for whose benefit the complaint is filed cannot be claimed in such a complaint.

The jurisdiction of the NCDRC shall be decided on the agreed sale consideration ,i.e.value at the time of booking the apartment, not the market value of the apartment. e. A cooperative society or a group of cooperative societies, firms, an association shall not be entitled to file a complaint under Section 12 (1) (c) unless the cooperative society itself is the consumer.

The Act does not allow more than one complaints in a representative character. The decision in one complaint filed in a representative capacity will bind all the buyers of the project. Therefore once a complaint in a representative capacity is filed under Section 12 (1) (c), and requisite permission for filing the same is given by the consumer forum, the second complaint under Section 12 (1) (c) will not be maintainable for the same project for the same relief. A second complaint, if filed, having the same interest and seeking the same relief is liable to be dismissed with liberty to seek impleadment in the complaint already instituted.

Since a complaint in a representative capacity shall be binding on all the buyers, an individual complaint expressing the same grievance will not be maintainable and the only recourse available to such buyer is to seek impleadment in the complaint filed in the representative capacity. However, as far as individual complaints instituted prior to grant of requisite permission under Section 12 (1) (c) is concerned, such complainants cannot be compelled to withdraw their individual complaint.

The consumers who are already before the consumer forum when the requisite permission in terms of Section 12 (1) (c) is accorded, will be out of purview of the representative complaint. The order passed in the representative complaint will not be binding on them.

However, if such persons want to withdraw their pending complaints and join the complaint instituted in the representative capacity, there is no bar on their adopting such a course of action. h. Considering the binding effect of a decision rendered under Section 12 (1) (c) on all the consumers on whose behalf such a complaint is filed, even if they choose not to join as a party to the complaint, It is necessary to exercise due care and caution while considering such a complaint while granting the requisite permission under Section 12 (1) (c).

It would be necessary for the bench to either give individual notices or an adequate public notice of the institution of the complaints, to all the persons on whose behalf or for whose benefit the complaint is instituted. Such a notice should disclose the subject matter of the complaint including particulars of the project, class of persons on whose behalf or for whose benefit the complaint is filed, the common grievance is sought to be addressed, the alleged deficiency in the service and the reliefs claimed.

It will also be necessary to hear the opposite party before taking a final view on grant of necessary permission under Section 12 (1) (c).

Court’s observation on existing complaints Individual complaints filed prior to the grant of requisite permission under Section 12 (1) (c) have been validly instituted and they can not be compelled to withdraw their individual complaint and compelled to become a party of subsequent complaints filed in a representative capacity. If, however, such persons want to withdraw their individual complaints and join the representative suit, they shall be allowed.

Example of a similar order pass by the consumer court in Case of Nitesh Caesars Palace :-

The instant complaint has been filed by Shri Vishwanath Shankar and 203 other complainants as a class action alleging deficiency in service on the part of the opposite party in respect of the builder buyer agreement executed by the complainants and other consumers with respect to the development project ‘Nitesh Caesar Palace’ undertaken by the opposite party. Along with the complaint an application under Section 12 (1) (c) of the Consumer Protection Act, 1986 seeking permission to proceed with the complaint as a class action, has been filed. The application is opposed on the ground that even among 204 complainants there are different groups of complainants having different interest.

We have heard the parties and perused the record. On careful perusal of the complaint we find that in para-1 the complainants have specifically mentioned that they wish to proceed with the complaint as a class action on behalf of themselves and other similarly placed consumers having the same interest and even in the prayer clause the complainants have sought similarly relief for all other consumers who are not party to the complaint. Therefore, in our view the complaint fits within the parameters of Section 12 (1) (c) of the Act. Accordingly, we grant permission under Section 12 (1) (c) of the Act to the complainants to proceed with the complaint as class action. As this is a class action complaint, issue public notice under Order 1 Rule 8 CPC in Deccan Herald (English) and Vijaya (Karnataka).

Home Buyers are increasingly engaging builder on various issues related to projects. Builders also find it difficult to silence individuals when confronted as groups. Although social media and informal groups are good for raising collective voice, buyers should look forward to registering their associations.
Home buyers associations can file cases on behalf of its members at various forums including Consumer forums. Cumulative value of cases when filed by association can easily exceed one crore and case can directly be filed in NCDRC. A legally recognised and registered association gives an impression of seriousness of people involved. A legally recognised group can present the grievances of home buyers group at various forums.
It is also worthwhile to mention that various defamation cases are being filed by builders against individuals. A registered association can always stand up against such tactics by builders and back those who are targeted by builders.
To sum it up, it is very advantageous to form a legally registered association to file a case cumulatively against a builder.

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Lawyers suggestion key points:

Buyers association either registered or unregistered can represent the case. However, registration would give more benefits so the builder is forced to talk to one identify who represents buyers benefit. Builder will naturally respond / negotiate once an association is formed.

Registration can be done before Occupancy Certificate (OC) but need to get the sale deed clearly checked line by line, by lawyer on this channel showed his suspicion of only 2 blocks ready out of 8 blocks: chances of many issues. Registration agreement needs clear scanning by lawyer to avoid future mistakes as the project isn’t complete.Buyer can register the property but do not tie registration to OC as that will clear all the uncertainty of owning the flat.

Possession without OC is at builders cost. Builder is liable to bear all cost such as taxes, power, maintenance etc. Buyer can take possession if builder is giving alternate power but should be at his cost not owners.

Maintenance agreement: There is no legal binding to sign any maintenance agreement during registration you can deny as it is one sided. Strictly No to maintenance agreement of 10 yrs..Builder cannot enforce this for signing. Demanding 1 year maintenance cost in advance is ok. Maintenance payments to be in the name of different or specific bank account. Need not pay more than 1 year.

Arbitration clause is not applicable for filing case in consumer court. There is only consumer court for this issue and can be through association and effective through association rather individual. Interim relief for completion of amenities/services can be claimed at consumer forum.

A “power of attorney” is a legal instrument whereby one person gives another person the authority to act on his or her behalf as his legal representative, and to make binding legal and financial decisions on your behalf.

Important Facets of the Power Of Attorney

Legal representation

Limits imposed

Time frame

Scope of the draft

The present question is regarding the validity of passing of a power of attorney executed outside India. The value of a deed of power of attorney executed outside India is proven through a process called Apostallisation passed under Hague convention of 1961. Under Article 1 of the treaty:

All the registry entries of a notary public and official certificates signed under the private capacity certifying registration,

Notarisation and authentication of documents are treated as public documents, which are available for public inspection.

Method 1: Legalisation

A deed of power of attorney is framed complying with laws of both the countries involved. (In the present case USA and India) The deed is made sustainable to legal challenge by notarising it from the authorized officer in the Indian Consulate/Embassy as he is a valid notary under Indian law under section 3, Diplomatic and Consular Officers (Oaths and Fees) Act, 1948.

Once the deed is executed from the embassy, it is sent to India for registration along with all the signatures and the payment of stamp fees according to section 2(17) along with schedule I of Indian Stamp Act, 1899. Once registration is done under the adjudication of the sub-registrar, the legality of document can be proved in the court of law beyond all reasonable doubts.

Ministry of external affairs, Government of India has issued a notification L161/1/2003 In March 31st 2006 accepting the Hague convention and entering into force for India on 14th July 2006.

Method 2: Apostallisation

It is much simpler process but with a certain degree of doubt and suspicion surrounding it. For making a deed of power-of-attorney which is valid in India from USA, firstly a deed must be executed according to the law of the state where you are residing in. The grantor shall comply with all the legal requirements under US laws and Indian laws, so that there won’t be any difficulty in legally enforcing it in India.

The next step is to approach the U.S. Department of State Authentication Office to get an apostille stamp affixed in the document. If the deed complies with all the requirements set forth by Section 17 (b) and 33(c) of the Indian Registration Act, 1908 and Section 2, Power of Attorney Act, 1882 along with payment of required stamp duty, it shall be registered and can be considered as a valid power of attorney in India.

FAQs

1) What value does the verification or attestation of a foreign notary hold in India?

Ans: According to the section 14 of the Notaries Act of 1952, if the central government is satisfied that by law or practice of any country or place outside India, the notaries act done by notaries within India are recognised for all or any limited purposes in that country or place, the Central Government may, by notification in the Official Gazette, declare the notarial acts lawfully done by notaries within such country or place shall be recognised within India for all purposes or, as the case may be, for such limited purposes as may be notified in the notification.

Thus it is perfectly valid.

2) Is registration required for this deed?

Ans: Yes, registration is must for this deed of power of attorney, as under Section 17 of the Indian Registration Act, 1908 it is required that all non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees, and upwards, to or in immoveable property, must be registered for ensuring its legal validity.

3) Is Hague convention ratified in India?

Ans: Hague Convention is in force in India since 14th July 2006. It is upheld by an amendment in Diplomatic and Consular Officers (Fees) Rules, 1949 under Section 8 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 whereby the Central Government is allowed to make rules accordingly.

Section 14 of the Notaries Act of 1952 read along with the section 33(c) of TheRegistration Act, 1908 gives the discretion to the Central Government to recognise the acts of foreign notaries if found satisfactory. It will have the same effect of an act done by an Indian notary.

4) Why there are two methods of certification?

Ans: The first method is older and lengthy, when compared to apostillisation process. The public seems to prefer the simpler method. But, in the actual practice, the newer process is no less cumbersome than the old one, as only difference is a mere change in the office where you get it done. And further adding salt to the injury in the second case, the grantor has to make sure that both the laws are complied with, whereas in the legalisation, Indian law is the only one to be complied with.

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Building projects are often delayed due to disputes between a builder, land owner and developer. Builders try to term these as force majeure, which means due to circumstances beyond their control, to avoid being held liable for deficiency in service. In a recent ruling, the National Commission has held that such disputes cannot be termed force majeure, and a consumer would be entitled to claim a refund along with interest and compensation when the builder is unable to complete the housing project in time. However, a builder can neither unilaterally extend the date of possession nor insist on allotting alternate flat or plot to escape refunding the amount.
Case Study: Shahin Mulla wanted to purchase a residential unit in “Amar Prem”, a housing project in Goa, to be developed by Utopia Projects. The entire consideration of Rs 30 lakh was paid in two instalments of Rs 15 lakh each.
The agreement for construction and sale was executed thereafter on February 24, 2012. It stipulated that possession would be given by September 2013, but the builder would be entitled to a grace period of four months, i.e. till January 2014.
When Mulla visited the site in August 2013, she found that even the foundation had not been laid. She got a legal notice issued to the builder, which was ignored. So she filed a complaint before the Goa State Commission.
The builder contested the complaint, explaining that they had been assigned development rights by RPC Builders and Developers, who had later committed various breaches and were also demanding extra payment for the property. As a result of the dispute, work could not commence. The builder termed the dispute as force majeure and not due to any wilful default. Utopia Projects also pointed out that the complaint was premature as it had been filed prior to January 2014, which was the date of possession inclusive of the grace period.
The state commission observed that the agreement provided that in case of any delay beyond the grace period, the builder would pay the purchaser a monthly compensation at Rs 50 per sq.ft. The defence of force majeure cannot be invoked as the agreement had not been terminated due to inability to perform it.
The state commission concluded that there was deficiency in service and ordered the builder to refund the amount of Rs 30 lakh along with 5% interest from the date of payment of each instalment till the extended date of possession. For the delay, the commission directed payment of a monthly compensation of Rs 50 per sq. ft. from February 1, 2014 till the date of payment. For mental agony, a further amount of Rs 1 lakh was awarded, which would carry 9% interest if not paid within 30 days.

Utopia Projects appealed to the National Commission, contending that the company had formulated a revised schedule, but Mulla was not willing to accept it. In its judgment of April 1, 2015 delivered by M Shreesha for the Bench along with Justice DK Jain and Vinay Kumar, the National Commission held that a consumer is not concerned with the internal disputes between the landowner, developer or contractor. A builder cannot take shelter by wrongly terming internal disputes as force majeure. It ruled that Mulla was well within her rights to demand possession within the stipulated time or else seek a refund along with compensation. Accordingly, the National Commission rejected the builder’s appeal, holding that the state commission had rightly allowed Mulla’s claim.

Conclusion: The consumer has the right to refund along with compensation when a builder delays possession beyond the agreed time.